ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ARI NATHAN KAPLAN
Applicant
– and –
RUTH KAPLAN
Respondent
Dana Cohen for the Applicant
Adina E. Schild for the Respondent
HEARD: December 8-12, 15-17, 2025
Mathen j.
CORRECTED REASONS FOR DECISION
INTRODUCTION
This decision was originally issued on January 28, 2026. At that time, I asked the parties to advise me within ten days if they identified any mathematical errors in the calculations. Under those calculations, which relied in part on the charts of the parties, I found that the Applicant had overpaid the Respondent by $27,979. Both parties made submissions. Based on certain corrected calculations, I have corrected my decision to hold that the Applicant owes the Respondent $9,096. Further explanation of this outcome appears below.
1This is a motion to change in a family law case.
2The parties, Ari and Ruth, married in 1997, separated in 2006, and divorced in 2009. Their three sons were born in 1999, 2001 and 2004. The two oldest, Z. and I., are no longer children of the marriage. The youngest, G., is in university and expects to graduate in 2026.
3Ari and Ruth executed Final Minutes of Settlement on April 27, 2015. They turned those minutes into a Final Order of Kaufman J. dated May 14, 2015. For reasons that are unclear, the order was not signed until December 5, 2018.
4The parties negotiated the Minutes themselves but obtained independent legal advice when they signed them.
5The Final Order is over 18 single-spaced pages long. It addresses parenting, child and spousal support, income for the purpose of support, section 7 expenses, arrears, and interest. It called for the parties to execute yearly ‘Amending Agreements’. The parties were only able to execute an Amending Agreement for 2015.
6Under the Final Order, there is no ongoing spousal support obligation after 2015.
7In 2019, Ari launched a motion to change because, he says, Ruth would not agree to vary child support and had instigated enforcement of the original child support amount from the Family Responsibility Office (a request Ruth withdrew in 2020). Ruth filed a response to Ari’s motion to change where she also sought changes to the Final Order.
8The file then lapsed. In 2023, the court sent out a Notice of Approaching Dismissal. Ari was content to let the matter be dismissed. Ruth revived it.
9Ari no longer seeks the changes that he did in 2019. Instead, he wants this court to find that he has satisfied his financial obligations to Ruth and owes her no arrears.
10Ruth now says she merely wants to enforce the Final Order. She says that Ari owes her $430,061.65.
11The parties’ family circumstances have changed significantly since 2019. Their children are over 18, which makes parenting orders unnecessary. Ongoing support is not an issue except for their youngest child and only for the next six months.
12Both parties relied on numerous charts and spreadsheets. After the close of trial, at my request, the parties provided certain spreadsheets in Microsoft Excel so I could adjust their calculations. After I issued my original decision, counsel for the Applicant advised me that his spreadsheet did not have embedded formulas for all of the cells. As a result, my changes to the Applicant’s income on that spreadsheet did not feed into the cells determining child support for the relevant years. For clarity, I accept the Applicant’s explanation that the calculations required in this case are so complicated that some manual input was required. A corrected chart adjusts those amounts; as well as my finding that the Applicant owes set-off support for the youngest child in 2023 and 2024.
ISSUES AND BRIEF CONCLUSION
13The issues for trial are:
a. Does it violate the principles of natural justice to permit Ari to argue that the income determination clause for him in paragraph 78(a) of the Final Order should be changed?
b. What is Ari’s income? In particular, does paragraph 78(a) apply, or has there been a material change in circumstances requiring a different method for calculating income and, if so, what is it?
c. What is Ruth’s income?
d. During the periods in dispute, with whom did the children live and what child support was owed by either party to the other?
e. What if anything does Ari owe Ruth for section 7 arrears?
f. What if anything does Ari owe Ruth for spousal support arrears?
g. What if anything does Ari owe Ruth in interest?
h. What if anything does Ruth owe Ari for lost spousal support deductions?
14Briefly, I find that Ari owes Ruth $9,096. This amount is lower than what Ruth argued for because (a) except for one adjustment for travel expenses, Ari’s lower account of his income is more reliable than Ruth’s higher account and (b) the children’s residence changed in ways that largely reduced or suspended Ari’s child support.
15More particularly, I find:
a. It does not violate the principles of natural justice for Ari to argue that paragraph 78(a) of the Final Order should be changed.
b. Ari’s transition from being a law partner to a sole proprietor is a material change in circumstance. However, the Final Order’s formula for determining Ari’s income can apply, with appropriate modifications, to Ari’s current status. Between 2016 and 2024, Ari’s income for the purposes of support is his Line 150 income plus $25,000 plus an additional adjustment for travel expenses.
c. Ruth’s income is what is shown on her charts.
d. Ari’s position on the children’s residential schedule is more persuasive than Ruth’s position.
e. With respect to child support:
i. When the eldest child, Z., was in Israel in 2017-2018, and after he turned 18, neither party owed child support to the other;
ii. Ruth owes Ari table child support for the middle child, I., between January 2021 and April 30, 2022.
iii. Set-off support for the youngest child, G., commenced January 1, 2017. Once G. turned 20, set-off support continued on a summer schedule only.
f. Considering how the Final Order defines eligible section 7 expenses and requires such expenses to be tabulated and presented to the payor, Ari does not owe Ruth any outstanding section 7 expenses.
g. Ari owes set-off child support for G. in 2023 and 2024 until G. turned 20.
h. Ari owes nominal interest under the Final Order.
i. Between 2016 and 2020, Ari lost a total of $39,209 in spousal support deductions on his income tax returns for which he must be credited.
j. Considering all the evidence, Ari owes Ruth $9,096.
16Therefore, Ruth’s claims are granted in part.
17I will receive separate submissions regarding costs.
BACKGROUND
Facts
18Unless otherwise stated, the following information is undisputed. Some of the information is taken from the parties’ statement of agreed facts.
Ari
19Ari is a 54-year-old pension and benefits lawyer. In 1999, he started working at the law firm Koskie Minsky becoming an equity partner in 2005. He switched to a non-equity partnership in 2013. On October 1, 2016, Ari left Koskie Minsky to establish his current sole proprietorship, Kaplan Law. Ari’s tax returns include a Form 2125 Statement of Business and Professional Activity for Kaplan Law.
20Ari is an author. He has written a long-standing legal treatise on pensions, published by Irwin Law, and a handbook on mindfulness meditation.
21In 2017, Ari incorporated a company called “Family On Air Productions Inc” under Ontario Corporation Number 1974009. Ari was the sole shareholder.
22Ari incorporated a family trust sometime around 2010. Any amounts directed into the trust are treated as income. The Final Order states that $32,872 was directed into the trust in 2011, $27,488 in 2012, and $0 in 2013 and onwards. Ari testified that he has not made any contributions since 2013. Ari intends to dissolve the trust but has not yet done so.
23Beginning in 2021, Ari’s tax returns have included a Form T2125 Statement of Business and Professional Activity for “Toronto Method Mindfulness” which continues to this day. TMM is not incorporated.
24In 2022, Ari began doctoral studies in law at Western University. He earns T4 income as a teaching assistant.
25From 2015 to 2024, Ari’s Line 150 income ranged from $130,000 to $465,000. His average Line 150 income was $300,000.
26Ari's second wife died in 2015. He has since remarried.
Ruth
27Ruth, who is 52 years old, has a doctorate in electrical engineering. She specializes in ‘control theory’ using applied mathematics. Ruth is a former professor at Ontario Tech University. She went on long term disability in 2024.
28Ruth has an eye condition that makes it difficult to read items on a computer screen. Ruth says she also has attention deficit disorder, undiagnosed obsessive-compulsive disorder, and is in chronic pain. During the trial, she was in physical discomfort.
29Ruth started an unincorporated hobby business called Photo Benchers in 2016. Ruth reports its activities on her tax returns. Due to Ruth’s poor eyesight, the business has been inoperative since at least 2025.
30While working as professor, Ruth earned an average annual income of $140,000. Between 2016 and 2024, Ruth did not file any Income Tax Returns. She then filed 8 years of returns.
31Ruth is remarried with two children.
The children
32In 2015, all three children of the marriage lived primarily with Ruth. Pursuant to the Final Order, Ari agreed to pay full table child support based on an estimated income of $350,000.
33For the most part the parties agree where the children lived. Their disagreement is about:
a. Whether the eldest child, Z., was entitled to child support for the months he spent in Israel after he turned 18 and before he began full-time university studies.
b. Where the middle child, I., lived between March 2020 and May 2022. On September 11, 2019, Justice Horkins issued an endorsement, on consent, that Ari’s child support obligation for I. terminated as of June 30, 2018, because I. was living primarily with Ari. Ruth says I.’s residence changed again after this date due to the COVID-19 Pandemic.
c. Where the youngest child, G., lived between January 2016 and September 2017; and what support is owing between the parties during his studies at McMaster University. Ruth says that G. was residing primarily with her until August 30, 2017. Ruth also claims set-off child support while G. is at university.
34Ruth does not dispute that, for any period where any of the children did not reside primarily with her, she owes child support (full or set-off) to Ari.
35Under the Final Order, all child support terminates at the earlier of when a child ceases to be a child under the Child Support Guidelines, or turns 22. The eldest child, Z., turned 22 on November 25, 2021. The middle child, I. turned 22 on September 20, 2023. The youngest child, G., turns 22 on August 6, 2026.
The Final Order
36To begin, I note the following provisions of the Final Order:
a. Paragraph 18: Ari was to pay Ruth arrears of child and spousal support fixed at $213,709 and allocated as $64,283 on account of child support and $149,492 on account of spousal support.1 The spousal support was to be tax deductible to Ari and included in Ruth’s income in the years in which it was paid and received.
b. Paragraph 20: In addition to the arrears in paragraph 18, Ari was to pay Ruth retroactive spousal support arrears of $132,485, payable at a rate of $3,397.05 per month commencing January 1, 2016, and ending March 1, 2019. These monthly payments of $3,397.05 were to be tax deductible to Ari and included in Ruth’s income.
c. Paragraph 22: Interest on arrears owing is deemed to be ‘child support’ and added to arrears as they become due.
d. Paragraphs 26 and 27: For 2015, Ari was to pay Ruth child support for three children in the amount of $5,491 per month as based on an estimated annual income of $350,000.
e. Paragraph 28: Ari was to make minimum payments to Ruth which were to be “greater than the sum of the table child support owing for that month, Ari’s share of the section 7 expenses for that month, and $2,000 towards the payments of arrears, if any.”
f. Paragraph 38: Ari was to pay Ruth interest on any arrears owing at a rate of prime plus 2% compounded semi-monthly, at the same time as support payments are due. Interest owing is “deemed to be child support and shall be enforceable as child support.”
g. Paragraphs 44-50: The parties share special and extraordinary expenses proportionate to income, adjusted annually. Section 7 expenses are defined as: Jewish day school tuition, summer camp fees where the parties agree to the children’s attendance, extracurricular activities and so-called “special trips”, uninsured medical and dental costs, fees for documents such as passports or driver’s licences, other expenses “which are considered section 7 expenses under the Child Support Guidelines” and any other “mutually agreed to expenses”. Jewish day school tuition would be paid to the institution directly and shared proportionate to income.
h. Paragraph 46: Section 7 expenses were to be reimbursed within 14 days of the paying party providing proof of expenditure, and the parties were to inform each other about these expenses in a timely manner. For annual accounting, only section 7 expenses claimed in the year that the expense was paid would be considered as part of the accounting for the prior year. An expense “is still due and owing with the correct percentage applied to the expense” but only in the year in which the request was received.
i. Paragraphs 53-54: If a child attends a Canadian university or college program, for so long as child support is payable under the Order, the parties “shall assist the children, if so inclined, in either of their sole discretion or determination”. If a child attends a university or college outside Canada, the parties will “deem at each of their sole discretion” the first $20,000 of these tuition fees as section 7 expenses and any additional tuition will be the children’s responsibility.
j. Paragraph 56: Ongoing spousal support will end as of January 1, 2016.
k. Paragraph 59: Child support terminates at the earlier of: when the child ceases to be a “child” as defined in the Guidelines, or the child’s 22nd birthday.
l. Paragraph 61: Any child support payable for a child when he is 20 or 21 is to be paid to the child directly “or to a person on account of actual expenses”, unless the child is living with the respondent (Ruth).
m. Paragraphs 78a: Ari’s income “will be determined as the sum of his gross professional income plus other income received from all other sources (and ignoring “interest” line 121 and sch. 4 re KM [Koskie Minsky]2 income), plus $25,000.”
n. Paragraph 78b: Ruth’s income will be determined by her gross income for all sources.
o. Paragraph 78c: “For clarity, actual income is determined based on tax slips received by the parties and for the purpose of making the annual calculations and adjustments in an annual Amending Agreement, no further documentation or disclosure is required. It is the applicant’s and the respondent’s clear intention that annual adjustments forming the content of an annual Amending Agreement be calculated simply, easily and mechanically and without undue delay.”
p. Paragraphs 29, 36, 73 and 82: The amount of child support would be amended annually in April to “address any changes to the table child support amounts based on the party’s actual incomes.” The parties would execute an annual Amending Agreement to reflect any such changes.
q. Paragraph 36: “All of [Ari’s] payments will be cumulatively tabulated so that an accounting, adjustment and reconciliation of the amounts can be tabulated the following April when actual income amounts are determined”.
r. Paragraph 102 of the Final Order: Any provisions of the Minutes of Settlement not included in the Final Order will continue in effect and be binding upon the parties. Paragraph 8.9 of the Minutes of Settlement states that Ari’s monthly payments are to be allocated in the following order: Table Child Support, child support arrears, section 7 arrears, spousal support and finally spousal support arrears. At trial, the parties agreed that this allocation remains in force.
s. In addition to the annual review of child support based on income, there are standard ‘material change’ clauses, including but not limited to a material change in either party’s financial position, a change in the number of children entitled to receive support, a change in a child’s section 7 expenses, a change in the child’s residence (including shared residence) that affects the amount of support under the Guidelines, or a child turning 18 years of age. A party invoking a material change had to give notice of, as well as the documentation supporting, the change.
The 2015 Adjustment Agreement
37The Final Order contemplated that the parties would execute annual “adjustment agreements”.
38The parties only ever executed an agreement for 2015, which they signed on January 30, 2017. The agreement includes the following terms:
a. The agreement “does not replace any of the terms of the settlement”, but is “intended only to amend and update the quantum of support payable[.]”
b. Ari’s gross income for 2015 is $219,000.
c. Ruth’s gross income for 2015 is $110,384.
d. All section 7 expenses for 2015 “are paid with no balance owing”.
e. Ari’s child support obligation in 2015 is $43,260 comprised of $3605 monthly.
f. Ari’s spousal support obligation in 2015 is $14,202 comprised of $1,191 monthly.
g. Ari paid $117,744 towards support in 2015 which is allocated as:
i. $43,260 on account of table child support.
ii. $74,484 on account of child support arrears.
iii. $0 on account of spousal support.
iv. $0 on account of spousal arrears.
h. For 2016, Ari’s income is estimated at $300,000.
i. For 2015, Ruth’s income is estimated at $115,000.
j. Based on their estimated incomes, commencing January 1, 2016, Ari will pay table child support for the 3 children in the amount of $4,771 per month. The parties will share in section 7 expenses in the following proportions: Ari 77% and Ruth 23%.
k. As of December 31, 2015, Ari owes Ruth $117,904 consisting of:
i. $159,616 on account of spousal support.
ii. $0 on account of section 7 expenses.
iii. $18,288 on account of child support.
ANALYSIS
39The facts as I find them are contained in the following analysis.
40I begin with general observations, discuss credibility, and then move to specific issues.
General Observations
41The parties’ positions have changed significantly since Ari filed his motion to change in 2019. Indeed, the trial was no longer a motion to change in any real sense. Therefore, neither party is entitled to complain about the other’s changed position.
42Each party emphasized the need for the Final Order to be interpreted in a way that is ‘fair’. It is clear that Ari and Ruth feel highly aggrieved by aspects of the Final Order. Neither of them, however, seeks to set aside the Final Order on the basis that it is unconscionable. This court must interpret the Final Order on its own terms. Parties can make bad deals. The court’s task is not to arrive at a result that is fair, per se, but a result consistent with the deal that the parties made.
43The focus of analysis is the Order, not the 2015 Minutes of Settlement. Ordinarily, this would not need to be said. However, neither party acknowledges drafting the Final Order. Ari says he never saw the final version of the Final Order until 2018. Ruth suggested that the Office of the Children’s Lawyer, or Newmarket court staff, may have drafted the Order which slightly deviates from the Minutes. I find all of this difficult to parse. What matters is that the parties signed the Order, which was then endorsed by Justice Kaufman, and that neither party wishes to set it aside. Accordingly, I will refer to the Minutes only as required under the Order.
44Both parties spoke at length about their marriage and separation, the prior involvement of the Children’s Lawyer in relation to their middle son, their past legal proceedings, and their relationships with their children. Insofar as their respective narratives predate the Minutes of Settlement and Final Order, they do not relate to the matters I am charged to decide.
45Paragraph 61 of the Final Order states that, after a child turns 20, any child support owing is to be paid directly to that child or to a third party for expenses. The children are not parties to this proceeding. Therefore, I exclude any such amounts from the calculations of what either party owes the other. Paragraph 61 also states that, should a child of 20 or 21 be living with the respondent (Ruth), she is entitled to child support. The paragraph does not mention (a) shared parenting or (b) primary residence with Ari. After the close of trial, I asked the parties whether any child support would ever be owed to Ari for a child of 20 or 21. The parties confirmed that they are proceeding on the basis it would, based on the child’s residence.
46Ruth argues that her spreadsheets should be preferred to Ari’s spreadsheets. Ruth says the parties relied on her calculations when they negotiated their separation agreement in 2011, when they entered into Minutes of Settlement in 2015, and when they entered into their Amending Agreement in 2017. She argues that, if her spreadsheets were reliable to Ari back then, they ought to be reliable to him – and the court – now. I do not accept this argument. First, Ari’s past acceptance of Ruth’s spreadsheets does not mean that he found them reliable. It could simply mean that Ari was not inclined to fight Ruth on particular issues. Second, even if Ari found Ruth’s calculations reliable in the past, I am satisfied that he no longer does. The trial has revealed significant disagreements between the parties on various facts and interpretative issues.
47Therefore, I am not persuaded that Ruth’s spreadsheets have any additional weight based on past reliance on those spreadsheets. I refer to, and borrow from, both parties’ calculations.
48Finally, with respect to the burden of proof:
a. Ruth bears the burden of proof on her natural justice claim.
b. Ari bears the burden of proof to show a material change in circumstance that affects the method of calculating his income.
c. Each party bears the burden of proof with regard to their respective incomes.
d. Ruth bears the burden of proof to show that Z. was entitled to child support after he turned 18 and while he was at Yeshiva in Israel.
e. Ruth bears the burden of proof to show that I.’s residential schedule changed during COVID.
f. Both parties bear the burden of proof for certain arguments regarding what support was owing on account of G. after 2017.
g. Ruth bears the burden of proof on the section 7 expenses she claims. This includes proving that certain items – such as university tuition – are owed by either party.
h. Ari bears the burden of proof on how to interpret the interest clause, and whether he has complied with it.
i. Ari bears the burden of proof on whether he is entitled to a credit for lost spousal support deductions and, if so, the amount.
Credibility
49Credibility is a primary vehicle for determining the truth of alleged facts. Assessing credibility is not an exact science: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; Konstan v. Berkovits, 2023 ONSC 497, at para. 11.
50Traditional criteria used to assess witness evidence include witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178, at para. 46 per Justice Cameron.
51Witness credibility is critical to the burden of proof. Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact”: Konstan, at para. 9.
52Credibility differs from reliability. Credibility has to do with whether someone is honest, while reliability concerns whether their testimony is accurate: R. v. Sanichar, 2013 SCC 4, [2013] 1 S.C.R. 54 at para. 19. One may find a witness generally credible yet doubt their reliability. Conversely, a witness who is not credible may still offer reliable testimony.
53Only Ari and Ruth testified. I find them both credible, in that I believe that each sought to be truthful. However, Ari is more reliable than Ruth. Ari was cooperative and non-combative under cross-examination. When confronted with contrary facts or propositions, Ari acknowledged where his own position might be flawed. In contrast, Ruth was quite combative under cross-examination. She frequently challenged the wording of questions – requiring opposing counsel to rephrase questions or, in the interests of time, abandon them altogether. Ruth also insisted that if she felt that a particular question was misleading, she could not confine herself to just answering “yes” or “no”. As a result, Ruth’s answers tended to be long and confusing. I cannot tell whether Ruth’s uncooperative posture was due to her attention deficit disorder. I do not think that Ruth intended to be a difficult witness. Nevertheless, too often, the court was left without clear responses to reasonable questions.
54Therefore, where the parties’ accounts conflict, I tend to prefer Ari’s testimony and evidence.
Issue One: Does it violate the principles of natural justice for Ari to argue that the income determination clause for him in paragraph 78(a) of the Final Order should be changed?
55Ruth argues that this court lacks jurisdiction to consider a claim related to changing paragraph 78(a) of the Final Order. That provision specifies a formula for calculating Ari’s income for support.
56Ruth makes this argument because (a) Ari’s motion to change does not list paragraph 78(a) as one of the provisions he sought to change and (b) at the trial management conference, Ari said he was abandoning all of the claims in his motion to change and seeking, instead, to have Ruth’s claims dismissed.
57Ruth says it is unfair and “against the principles of natural justice and procedural fairness for a major claim that was not plead by either party or listed as an issue for this trial ... to now proceed to adjudication”.
58I agree with Ruth that it is unusual that Ari’s motion to change, which lists dozens of other paragraphs in the Final Order, does not mention paragraph 78.
59Nevertheless, for the following reasons, I am not persuaded that it would be unfair, or violate the principles of natural justice and procedural fairness, to consider whether there has been a material change in how Ari’s income should be calculated:
a. Ari testified that Ruth’s position on this issue came as a surprise to him, because she often complained about the income determination provisions. I accept this testimony. At paragraph 22 of her Form 15B – Response to Motion to Change – Ruth argued that “it has become impossible to determine income adjustments and therefore impossible to determine Child Support.” As a result, Ruth sought to have the court impute income to Ari of $535,000. She has since abandoned that claim. Nevertheless, it shows that Ruth turned her mind to the implications of, and alleged difficulties with, paragraph 78(a) from the beginning of these proceedings.
b. While Ari’s motion materials do not mention paragraph 78(a), his materials do discuss his change from being a partner at Koskie Minsky to an unincorporated sole proprietor.
60Therefore, this argument is dismissed.
Issue Two: What is Ari’s income?
61The dispute over Ari’s income after he left Koskie Minsky is the biggest reason that the parties were unable to conclude any Amending Agreements beyond 2015.
62The paragraphs in the Final Order relevant to this issue are:
… For 2015, the applicant’s income will be deemed as the sum of his gross income from all sources (and ignoring “interest” line 121 and sch. 4 [Koskie Minsky]3 income) plus $15,000 and the respondent’s income is the sum of her gross income from all sources.
Commencing 2016 onwards, income calculations for determination of support obligations as well as for determination of proportionate sharing of S.7 expenses shall be done based on the parties’ actual income in that year. This will be calculated using the following method:
a. The applicant’s income will be determined as the sum of his gross professional income plus other income received from all other sources (and ignoring “interest” line 121 and sch. 4 re [Koskie Minsky] income), plus $25,000. The sum of these will be deemed to be the applicant’s actual income…
c. For clarity, actual income is determined based on tax slips received by the parties and for the purpose of making the annual calculations and adjustments in an annual Amending Agreement, no further documentation or disclosure is required.
63The key sentence for this issue is found in paragraph 78(a): “The applicant’s income will be determined as the sum of his gross professional income plus other income received from all other sources (and ignoring “interest” line 121 and sch. 4 re [Koskie Minsky] income), plus $25,000.”
64Ari argues that:
a. Paragraph 78(a) is clearly premised on Ari working at Koskie Minsky. The clause references items in his T5 tax slip from Koskie Minsky – specifically, the interest paid by the law firm to the partnership, and “Schedule 4” which refers to the firm’s global income.
b. Because the Final Order does not say how the parties would determine Ari’s income if he left Koskie Minsky, Ari’s transition to Kaplan Law – an unincorporated sole proprietorship – is a material change.
c. Accordingly, Ari’s income should be determined according to the Child Support Guidelines.
d. In the alternative, paragraph 78(a) can be applied to Ari’s current income so long as the term “gross professional income” in that paragraph is understood to be a misnomer. Paragraph 78(a) only ever included Ari’s net earnings from Koskie Minsky. For example, in 2016, Ari’s gross earnings were approximately $371,000, but the amount he received from Koskie Minsky was $229,608. While $229,608 is not his ‘gross income’, that is the amount reported on his tax slip, and it corresponds to the amount on which support is calculated.
e. Ari’s “gross professional income” at Koskie Minsky excluded things like rent, law society fees, insurance, personnel and legal assistance, equipment and utilities, phone, computer, subscriptions, research materials, some travel and a promotional account for business development.
f. After he became a sole proprietor, Ari did not have a legal obligation to produce an income report.
g. Ari’s income as a sole proprietor is uncomplicated.
h. At trial, Ruth did not cross-examine Ari on any of his claimed expenses.
i. Based on Ari’s testimony and tax returns, the court can have confidence in his line 150 Income found on his tax returns.
j. Ari acknowledges that some of the expenses he claimed on his taxes for his business are personal. These personal expenses include some travel, streaming services such as Netflix, and, in 2020, legal fees for this case.
k. Ari proposes that some of those expenses be added back. He says that a fair and proportionate amount, year over year, is $7500, which, grossed up for tax purposes is $15,000 – the same as in paragraph 26 of the Final Order.
l. In the alternative, should the court decide to apply paragraph 78, Ari says that his income is his net professional income plus a gross up of $25,000. That amount is what was used to calculate his income for support while he was still at Koskie Minsky.
65Ruth argues that:
a. At the time of the Final Order, she knew that Ari was planning to leave Koskie Minsky, although not exactly when.
b. She did not anticipate that Ari would fail to incorporate Kaplan Law so that he no longer received tax slips.
c. Still, Ari’s method of earning and reporting income has not changed.
d. While Ari now pays expenses that used to be covered by Koskie Minsky, he also continues to write off expenses that are wholly personal.
e. As the party seeking to change a final order, Ari bears the burden to prove his income, including which expenses are legitimate to his business.
f. Despite several requests, Ari refused to provide an income report.
g. Ruth sought disclosure from Ari about, among other things, his professional income and his expenses. Ari did not provide updated disclosure after August, 2019.
h. Ari has failed to lead any credible evidence with respect to his income. He is asking Ruth, and this court, to “take his word for it”.
i. An adverse inference should be drawn against Ari with respect to his income.
j. The $25,000 top up in paragraph 78(a) of the Final Order is based on calculations in a 2011 income report performed by AP Valuations.
k. Ruth applied the methodology in the 2011 report to calculate Ari’s gross professional income from 2016 onwards. In particular, she applied AP Valuations’ estimate of Ari’s legitimate business expenses while at Koskie Minsky to his claimed business expenses under Kaplan Law. For example, since the 2011 report determined that only 40% of Ari’s travel while at Koskie Minksy was a legitimate business expense, Ruth considers only 40% of Ari’s travel expenses at Kaplan Law to be legitimate. Ruth has grossed up anything over that proportion and added it back to Ari’s income.
l. Once the appropriate expenses are clawed back and grossed up at Ari’s marginal tax rate, Ari’s income is higher than his gross income from all sources.
m. Should the court determine that paragraph 78(a) does not apply, Ari’s income must be calculated as: (gross income) – (only the most obvious legitimate business expenses) + (gross up at the appropriate marginal rate for all expenses clawed back).
66Therefore, the parties’ comparative position on Ari’s income is:
| Year | Gross Income + 25K (Ruth position) | Line 150 + 15K (Ari position 1) | Line 150 + 25K (Ari position 2) |
|---|---|---|---|
| 2016 | $350,464 | $250,600 | $260,600 |
| 2017 | $289,990 | $192,194 | $202,194 |
| 2018 | $499,238 | $403,561 | $413,561 |
| 2019 | $378,898 | $275,852 | $285,852 |
| 2020 | $411,109 | $326,666 | $336,666 |
| 2021 | $584,753 | $480,525 | $490,525 |
| 2022 | $257,886 | $142,859 | $152,859 |
| 2023 | $451,051 | $324,447 | $334,447 |
| 2024 | $670,550 | $530,840 | $540,840 |
67Determining Ari’s income involves the following questions:
a. Has there been a material change in circumstance?
b. Did Ari have an obligation to produce a new income report, and should his failure to do so result in an adverse inference against him?
c. How relevant is the methodology used in the 2011 AP Valuation Report?
d. What is Ari’s income for support between 2016 and 2024?
Has there been a material change in circumstance?
The Law
The test for a variation of a final order is found in Willick v. Willick, [1994] 3 S.C.R. 670 at 688. Before considering the merits of an application, the reviewing court must be satisfied that a material change in circumstances has occurred since the date the final order was made that would have changed the final order. The onus of proof is on the party seeking the change: Willick at p. 689.
Application
68Having reviewed the evidence, for the following reasons I am persuaded that Ari’s change from being a non-equity partner at Koskie Minsky to an unincorporated sole practitioner at Kaplan Law is a material change:
a. The 2015 Final Order makes several references to Ari’s employment at Koskie Minsky.
b. Paragraph 78(a) refers to specific elements in the Koskie Minsky tax slip.
c. Ruth testified that, while she knew that Ari would be leaving Koskie Minsky, she did not anticipate that he would become an unincorporated sole practitioner. This supports the idea that there has been a material change.
69Since there was a material change in circumstance, it remains to be decided how that would have changed the Final Order, and what is the appropriate way to calculate Ari’s income. Just because Ari’s employment changed, that does not mean everything in the Final Order related to his income is nullified. To put it another way, I am not persuaded that the parties simply would have resorted to the Child Support Guidelines to determine Ari’s income. I will return to this point below.
Did Ari have an obligation to produce a new income report, and should his failure to do so result in an adverse inference against him?
The Law
70Each party cites caselaw on whether Ari had an obligation to prepare an income report, and the implications this court should draw from the fact that he did not.
71Having reviewed the caselaw, including that submitted by each party, my analysis rests on the following principles:
a. As a self-employed individual, Ari bears the onus of establishing on a balance of probabilities the basis for his gross and net income, including substantiating the reasonableness of claimed expenses: Whelan v. O’Connor, (2006), 28 R.F.L. (6th) 433 (ONSC) at para. 13.
b. Every family law litigant who owns a business has an immediate obligation that arises when parties separate to consider a valuation of their business interests and assess how that obligation is to be met: Moerkze-Crupi v. Crupi, 2025 ONSC 6466, at para 5.
c. In many cases, a party’s interest in an incorporated or unincorporated company will require some expert assistance to value their income for support purposes: Sharma v. Sunak, 2011 ONSC 7670, at paras. 21-22; Franzese v. Franzese, 2025 ONSC 6015, at paras. 3-4; Moerkze-Crupi, at paras. 3-7.
d. Nevertheless, there is no automatic obligation for a self-employed individual to prepare an income report: Sargalis v. Sargalis, 2019 ONSC 530, at para. 11-12.
e. Where a party’s financial affairs are not that complicated, and any limited income questions can be addressed through targeted disclosure and formal questioning, a formal income analysis may be disproportionate and unnecessary: Howell v. Wignall, 2015 ONSC 6910, at para. 11.
f. An adverse inference may be drawn when a party fails to fulfil their disclosure obligations: Manji v. Manji, 2025 ONSC 1063, at para. 106.
g. Disclosure requests must be reasonable and proportionate: Burton v. Burton, 2016 ONSC 62, at paras. 27-30.
72The gist of the caselaw is that, while in many situations an income report will be helpful or, even, necessary, not every self-employed person needs to prepare one. The court must consider the overall context, the parties’ respective situations, and the need to balance precision with proportionality. It remains within the court’s discretion to decide what is required in order to determine a party’s income.
Analysis
73I find that Ari did not have an obligation to provide an income report. Therefore, I do not find that the absence of a report necessitates drawing a general adverse inference against him. That does not mean, however, that I accept all of Ari’s testimony and evidence about his income.
74Ari was not required to prepare an income report because:
a. The Final Order contains a formula for determining Ari’s income.
b. The parties intended that adjustments to their income be calculated “simply, easily and mechanically”.
c. Ruth states that, because Ari’s method of earning and reporting income has not changed, paragraph 78(a) of the Final Order still applies.
d. Ruth’s request for financial disclosure is distinct from her request that Ari obtain an income report. A disclosure request can be satisfied in numerous ways, of which an income report is only one.
e. While any obligation to produce an income report falls on Ari, Ruth never brought a motion for such a report, nor did she follow up on questioning Ari for which leave was granted. Ruth also did not cross-examine Ari at trial on any of his expenses.
f. Ari’s financial situation is not complicated. Ruth mainly objects to some of Ari’s business expenses. I find that the court can determine the legitimacy of those expenses based on the evidence adduced at trial, with adjustments as necessary.
g. While Ari does have interests in additional businesses or entities (Family On Air Productions Inc., his family trust, and Toronto Method Mindfulness), I am not persuaded that an income report was required for them. I find Ari’s testimony sufficient to determine whether and how much income should be attributed to him from those enterprises.
75In this case, having considered all the evidence, I find that Ari’s income can be determined without an income report.
How relevant is the methodology used in the 2011 AP Valuation Report?
76Ruth argues that the methodology used in a 2011 income report on Ari prepared by AP Valuations ought to guide this court’s analysis of how to determine Ari’s income now. On the basis of that report, Ruth has created a spreadsheet – not admitted into evidence – that purports to apply that methodology to Ari’s income from 2016 onwards.
77For the following reasons, I am not persuaded that the AP Valuations report can be relied on in this litigation:
a. The only evidence led in this trial about the 2011 report was Ruth’s testimony about it and a few emails from Ruth to Ari in April 2015 describing some of the methodology.
b. No expert testified to or provided an affidavit concerning the report. Ruth, who explicitly disavowed having any financial expertise, is not qualified to speak to the report.
c. The 2011 report was prepared while Ari was an equity partner at Koskie Minsky (he became a non-equity partner in 2013). There is no evidence that the valuator would have produced a similar report for Ari after he left Koskie Minsky to be an unincorporated sole proprietor.
d. I accept that the 2011 income report influenced the parties to agree on a top-up for Ari’s income in the Final Order ($15,000 in 2015 and $25,000 in 2016). However, nothing in the Final Order suggests that any other income determinations for Ari depend on the report. In particular, nothing in the Final Order says that the method for grossing up Ari’s business expenses contained in the 2011 report will apply to his income going forward.
What is Ari’s income for support between 2016 and 2024?
78In deciding on Ari’s income, I begin by finding that, had the parties known that Ari would transition to an unincorporated law practice, the parties would still have agreed to a top-up of his income. Doing so is consistent with the parties’ objective that the Final Order be enforced “simply, easily and mechanically” (paragraph 78(c)). In any event, both parties’ submissions on Ari’s income include a top-up. In the circumstances, I find that the higher top-up set for 2016 – $25,000 – would have continued to apply.
79Turning next to Ari’s actual income, Ari relies on the information supplied in his tax returns. In particular, Ari uses the income reported at Line 150. Ari recognizes that certain expenses claimed through his business were personal. He submits that those expenses can be accounted for by a top-up of, alternatively, $15,000 or $25,000.
80Ruth objects to Ari’s calculations because (a) Ari did not provide sufficient financial disclosure, including about Family On Air Productions and the family trust, and (b) Ari’s failure to produce an income report makes it impossible to accept his business expenses as legitimate.
81For ease of reference, I reproduce the comparative chart of the parties’ positions on Ari’s income:
| Year | Gross Income + 25K (Ruth position) | Line 150 + 15K (Ari position 1) | Line 150 + 25K (Ari position 2) |
|---|---|---|---|
| 2016 | $350,464 | $250,600 | $260,600 |
| 2017 | $289,990 | $192,194 | $202,194 |
| 2018 | $499,238 | $403,561 | $413,561 |
| 2019 | $378,898 | $275,852 | $285,852 |
| 2020 | $411,109 | $326,666 | $336,666 |
| 2021 | $584,753 | $480,525 | $490,525 |
| 2022 | $257,886 | $142,859 | $152,859 |
| 2023 | $451,051 | $324,447 | $334,447 |
| 2024 | $670,550 | $530,840 | $540,840 |
82The parties’ totals are far apart because (a) Ruth uses Ari’s gross professional income rather than his Line 150 income and (b) Ruth significantly grosses up Ari’s expenses based on her interpretation of the 2011 income report.
83Ari bears the burden to prove his expenses. However, because the analysis requires consideration of Ruth’s methodology, I will first address that methodology.
84In Ruth’s spreadsheet that purports to apply the AP Valuation methodology, Ruth has clawed back several of Ari’s expenses from 2016 to 2024 at the following rates:
a. Advertising: 40%
b. Meals: 25%
c. Travel: 40%
85Ruth applies a general gross up of 54% to the above categories. Ruth then grosses up advertising and travel even more, because of what she views as an additional personal element to those expenses. First, she argues that a great deal of Ari’s advertising costs related to buying printed copies of his books, but he did not account for any books that he sold. Second, Ari included significant personal travel such as an overseas trip with Z. in 2017, and travel for Ari’s PhD studies in 2023 and 2024.
86The result is that Ruth grosses up Ari’s income by almost the total amount of his expenses, and, in some years, even more. For example, in 2017, when Ari claimed $87,795.58 in business expenses for Kaplan Law, Ruth grosses up Ari’s income by $85,816.29.
87For the following reasons, I decline to use Ruth’s calculations:
a. I am not persuaded it is appropriate to apply the AP Valuations report to Ari’s expenses from 2016 on. The report is based on Ari’s 2011 partnership in a law firm. Being a sole proprietor carries different expenses implications. For example, the advertising and promotional activities of a sole proprietor likely requires a higher proportion of the lawyer’s earnings than they do for a partner.
b. While the absence of the 2011 report in the court record made it impossible to verify this, it appears that Ruth relies on AP’s claw back of expenses that Ari claimed on his personal tax return. That means that a good proportion of Ari’s expenses covered by Koskie Minsky, which were not reported that way, were not clawed back. Recall that, while paragraph 78(a) of the Final Order uses the term “gross income”, the parties relied on a tax slip provided by Koskie Minsky which noted Ari’s net earnings. As a result, for example, it appears that while Ruth has accepted that Ari’s rent should be excluded from his income, she fails to credit any legitimate business component to things like office expenses and supplies.
c. Ruth takes almost all of Ari’s gross professional income as a starting point but continues to add the top-up of $25,000. Ruth says she is simply applying paragraph 78(a) of the Final Order. But, as the parties each testified, the top-up was intended to be an easy way to cover so-called “soft expenses” with a personal element that would be time-consuming to assess. Ruth’s approach risks double counting soft expenses against Ari.
88I now turn to Ari’s testimony and tax returns. Ari bears the burden to prove his income. In general, I am satisfied that he has done so. In particular, I am persuaded that:
a. Ari did not generate income from Family On Air Productions between 2016 and 2024. As a way to advertise his new law practice, Ari created and hosted a show (long since ended) on Zoomer Radio. Family On Air was incorporated as a vehicle to pay for the show. I am satisfied that Ari generated no income from this enterprise.
b. Ari did not receive income from the family trust after 2013. Ari started the trust around 2009-2010 when he was an equity partner at Koskie Minsky. Ari testified that the trust related to his deceased second wife, that he has been “delinquent” in filing T3s for the trust and that he eventually will “pay the consequences” to the Canada Revenue Agency. While Ari’s failure to provide documentation for the trust is unhelpful, I am satisfied that (a) this is due to a mix of procrastination and emotions, not deceit and (b) the trust has made no disbursements for over a decade.
c. Ari’s advertising and promotional activities for Kaplan Law and Toronto Method Mindfulness are legitimate business expenses. I do not find that there is a personal element to any of those expenses. For clarity, and contrary to Ruth’s submission, I find that Ari purchased books for distribution to clients and at fairs. Based on Ari’s testimony about how the books contributed to his business and client development, I am satisfied that those expenses were not personal.
d. Ari did not specifically address his meal expenses. However, I find that any personal element to those expenses is covered by the $25,000 top-up.
e. I find that the one year in which Ari ran his family law legal fees through his business can be compensated for by the yearly $25,000 top-up.
f. Ari’s travel expenses are different. Ari acknowledged that some of his travel expenses were personal, and that some of the trips included his children. Ari argues that a top-up of $25,000 or even $15,000 is sufficient to capture these expenses along with all of the other soft expenses. I do not agree. I find that Ari has not entirely discharged his burden to show that the proportion of travel expenses he claims were legitimate. This is one area where Ari’s failure to adduce specific evidence must be held against him. I have decided that 25% of Ari’s travel expenses for Kaplan Law and Toronto Method Mindfulness listed in the Statement of Agreed Facts (SAF) must be clawed back and grossed up for each of the years in which they were incurred.
89The Final Order does not provide a method for grossing-up income. At paragraph 62 of her closing submissions, Ruth submits that the marginal tax rate for Ari ranges from 47.97% to 53.53%. Based on Ari’s net professional income, and using the discretion available to me under the Child Support Guidelines, I find that an appropriate gross-up for the travel expenses is 50%.
90Therefore, Ari’s income for the purpose of support is Ari’s Line 150 Income + $25,000 + 25% of his travel expenses grossed up at 50%. The totals are represented in the chart below:
| Year | Income Line 150 + 25K | Travel Gross-up (applied to amounts in SAF) | Total income for support |
|---|---|---|---|
| 2016 | $260,600 | $5,238.14 | 265,838 |
| 2017 | $202,194 | $13,484.93 | 215,679 |
| 2018 | $413,561 | $8,694.18 | 422,255 |
| 2019 | $285,852 | $9,311.36 | 295,163 |
| 2020 | $336,666 | $0 | 336,666 |
| 2021 | $490,525 | $1,932.96 | 492,458 |
| 2022 | $152,859 | $7,803.64 | 160,663 |
| 2023 | $334,447 | $10,992.33 | 345,369 |
| 2024 | $540,840 | $3468.83 | 544,309 |
Issue Three: What is Ruth’s income?
91For completeness, relying on Ruth’s closing submissions, Ruth’s income is as follows (rounded up as appropriate). These amounts are incorporated into Ari’s Chart #2 submitted after I invited the parties to point out mathematical errors:
| Year | Ruth’s income |
|---|---|
| 2016 | $116,912 |
| 2017 | $124,364 |
| 2018 | $130,924 |
| 2019 | $139,304 |
| 2020 | $144,394 |
| 2021 | $147,593 |
| 2022 | $151,547 |
| 2023 | $158,831 |
| 2024 | $156,616 |
Issue Four: During the periods in dispute, with whom did each child live and what child support was owed?
92For the most part, the parties agree on the children’s residential schedule and respective entitlement to child support. They dispute:
a. whether the oldest child, Z., was a child of the marriage after he turned 18 during the period he spent in Israel between high school and university;
b. the child support Ruth owes for the middle child, I., between March 2020 and May 2022; and
c. where the youngest child, G., lived between January 2016 and September 2017, and what if any support is owing after he started university.
The eldest child, Z.
93Z. graduated from high school in the spring of 2017. From September 2, 2017, until June 6, 2018, Z. attended a Yeshiva, which I understand to be a religious studies institution, in Israel. Z. turned 18 on November 25, 2017. He started an engineering degree at the University of Toronto in the fall of 2018.
94Ruth argues that Z. remained a child of the marriage throughout this time and, therefore, the parties had a child support obligation to each other. Ari says that between November 2017 and June 2018, Z. was in a ‘gap year’ during which he was no longer a child of the marriage because he was over the age of 18 and not in ‘school’.
95The Final Order provides that:
- If a child ceases to be a “child” as defined in the Guidelines because he has interrupted his schooling for any purpose, and he later returns to school full-time and is still under the age of 22, then he will be deemed once again to be a “child” as defined in the Guidelines and proportionate sharing of S.7 expenses will resume until the termination of child support as provided for herein. For clarity, final completion of all child obligations occurs, at the latest, when G. reaches age 22 (and taking into account any gaps in his status as a “child” between age 18 and 22).
96Ari argues that, where a child has a gap year between high school and university, the court has discretion about whether to order child support: Rodriguez v. Bell, 2024 ONCJ 302, at paras. 21-27. Some courts have continued child support during such periods: Edwards v, Edwards, 2021 ONSC 1550. The onus lies on the person arguing that child support should continue for a child over the age of 18: Rodriguez at para. 19.
97For the following reasons, I find that Z. was not entitled to support during the months he spent in Israel after he turned 18:
a. The Final Order explicitly contemplates that if there is an “interruption” to a child’s schooling “for any reason”, that child is not entitled to support.
b. The Final Order has exhaustive provisions regarding child support. For example, it states that Jewish school tuition during “elementary, middle and high school” is a section 7 expense. The Final Order also addresses whether child support is owing for a child attending “university or college” even if that child is not living at home. I find that had the parties intended for child support to be owing while a child attended a Yeshiva, they would have included a clause to that effect.
c. Ruth presented no evidence about the Yeshiva program, such as Z.’s transcript or the ages of the students who attended it.
d. Ruth acknowledged that Z. could not apply any credits from the Yeshiva program to his university studies. Ruth said that was due to the limits of Z.’s engineering program. However, Ruth presented no evidence about if or how other post-secondary institutions in Canada credit attendance at a Yeshiva.
e. There is no evidence about Z’s “means, needs and circumstances” to show whether he had a need for support during his time in Israel after he turned 18.
f. Child support is Z.’s right, not his parents’ – a fact that should guide this court’s analysis of the Final Order. However, the caselaw is equivocal about a support obligation for an adult child who has graduated from high school and is not yet in university. The Final Order does not necessarily leave Z. in a worse position than he would be under the Child Support Guidelines.
98Therefore, pursuant to paragraph 60 of the Final Order, Z. was not entitled to child support while he was at the Yeshiva in Israel from November 2017 to June 2018. For the purpose of calculating the total child support owing for Z., I rely on the second of Ari’s spreadsheets submitted with his closing arguments, called Chart #2.
The middle child, I.
99The parties agreed that Ruth would commence paying set-off child support for I. beginning January 1, 2016. Ari testified that Ruth “kicked [I.] out of her home on May 13, 2018.” Ruth did not dispute this. Ruth concedes that from July 1, 2018, to March 15, 2020, she owes Ari table child support for I.
100The issue is whether I.’s residence became shared during the COVID-19 pandemic, specifically, between March 16, 2020, and April 30, 2022.
101Ruth said that I. “must have” spent significant time with her over COVID, because her household included persons with compromised immune systems and, consequently, her son would not have been coming in and out of the household all the time but would have stayed for longer periods. Ruth also recalled seeing photographs taken of I. while he was in her home.
102Ari acknowledged that, in 2020, I. went back and forth between the parties’ homes, but he did not count the days and he did not think it constituted a shared schedule. Ari’s testimony for 2021 was more specific. Ari swore that I. spent exactly 67 days with Ruth between January and September of 2021, after which he lived primarily with Ari.
103Given the parties’ consent order, it is for Ruth to show that I.’s residential schedule changed during COVID.
104I find Ari’s account more reliable. While I accept that the middle child spent some time with Ruth during this period, I am not persuaded that it was over 40%. I find it likely that, because of the prior rupture in their relationship, Ruth is overestimating the time that the child spent with her after they came to a rapprochement. I agree with Ari that Ruth’s recollection requires several inferential leaps. Therefore, I am not persuaded that I.’s residence was shared between the parties during COVID such that Ruth’s table child support obligation changed.
105Because the middle child was in a co-op program during the summer of 2022, the parties agree that no child support was owing for those summer months.
106Ari has abandoned his claim for set-off child support during the month of September 2023 just before I. turned 22.
107Therefore, Ruth owes table child support for I. between May 13, 2018, and April 30, 2022. For the purpose of support owing for I., the court accepts the calculations in Ari’s Chart #2.
The youngest child, G.
108The parties agree that, for the purpose of child support, G. was shared starting on September 1, 2017. Their dispute is about, first, the period between January 1, 2016, and August 31, 2017; and second, the impact of G.’s studies at McMaster University starting September 1, 2022.
109This dispute turns on the following questions:
a. Is Ari entitled to argue that a change occurred before September 1, 2017?
b. Has there been a change in G.’s residential schedule?
c. What does the Final Order require in terms of child support while G. is away at university?
Is Ari entitled to argue that a material change occurred before September 1, 2017?
110Ruth says that child support for G. in 2016 is not properly before this court, because Ari’s motion to change only sought set-off support for G. commencing on September 1, 2017.
111Given that Ari did not seek leave to amend his pleadings, I find that Ruth’s argument prevails in part. Ari’s argument for a retroactive adjustment for 2016 is dismissed.
112However, the Final Order requires adjustments year over year and contemplates that support shall correspond with a change in the children’s residence. Therefore, I find, Ari is entitled to an adjustment for G.’s actual residence during all of 2017. This corresponds to Ari’s Chart #2 which excludes any calculations related to G. in 2016.
113For clarity, I do not find that Ari needs to prove a “material change” in G.’s residence in the sense of a change that was unanticipated by the parties when they negotiated the Minutes of Settlement. I find that the Final Order contemplates that child support might need to be adjusted because of a change in residence.
Has there been a change in G.’s schedule?
114Paragraph 26 of the Final Order states that in 2015, “[Ari’s]support obligations are based on the three children residing primarily with [Ruth].” Paragraph 57 of the Final Order states that “As of January 1, 2016, …[G.] will be residing with [Ruth].”
115Ari says that, at the time of the Final Order, his parenting of G. did not surpass the 40% threshold in section 9 of the Child Support Guidelines. Ari testified that Ruth deliberately constructed G’s schedule in the Final Order so that his time with Ari was only 39.4% for the calendar year. Ari said that in 2015 he was not even aware of the 40% rule. On that point, I believe him. By contrast, I am satisfied that Ruth was very aware of the threshold. Though not perfectly contiguous in time, in May 2017 Ruth sent Ari a text that said: “I will not pay child support for [G.] or anybody in any year where they don’t make the 40% rule. [G.] does not make that in…2017[.]”
116Ari says that by January 1, 2017, G. was living with him 40% of the time. Ruth does not dispute that G.’s parenting time with Ari exceeded 40% – only whether that fact is relevant to determining support owing before September 1, 2017.
117Ruth says that the Final Order contemplates that:
a. G. was in a shared parenting arrangement as of 2015 (paragraph 25).
b. Despite the shared parenting, Ari was to continue paying table child support for G (paragraph 57).
c. Table child support was to continue until the parties entered their first Amending Agreement (paragraph 57).
d. Therefore, Ruth is entitled to receive table child support regardless of whether G.’s residence was shared. G’s residence before September 1, 2017, is immaterial to Ari’s support obligation.
118Ruth’s argument cannot be accepted. The Final Order specifies what support was owing based on the parties’ living situation and negotiations in April 2015 – not forever. Furthermore, while the Final Order does describe some parenting as “shared”, it does not specify whether that term corresponds to the 40% threshold in section 9 of the Child Support Guidelines.
119Therefore, I find, Ari has made out his case that G.’s child support is subject to a set-off from January 1, 2017.
Child Support during G.’s studies at McMaster
120G. turned 18 on August 2, 2022. He began post-secondary studies at McMaster University on September 1 of that year.
121The parties dispute what child support is owed between them during this period.
122The Final Order states:
If Child Support is payable in respect of a child when he is age 20 or 21 then the Child Support payments will be paid to the child or directly to a person on account of actual expenses, except where the child is living with the respondent [Ruth].
In addition to the annual review of child support, either the respondent or the applicant may seek a change in child support if there is a material change in the condition, means, needs or other circumstances of the respondent, applicant, [or any of the children] that would affect child support. A child attending university out of town or a child attending university and not living at either the respondent’s or the applicant’s home will not constitute a material change.
123Ruth says paragraphs 61 and 64 prove that the parties intended for child support to be ongoing while a child was away at university. After the child turned 20, support would be paid directly to them except for when they were living with their parents. Therefore, Ruth says, she is owed set-off support until August 2, 2026 (G.’s 22nd birthday) except for the academic semesters when G. is 20 and 21, during which support is to be paid to G. directly or another person on account of actual expenses. Ruth says that ‘academic semesters’ exclude December, and April to August, meaning that she claims child support for six months a year.
124This is Ruth’s proposed chart on G.’s child support:
| Date | Living Arrangements |
|---|---|
| January 1, 2016 – August 30, 2017 | Ruth |
| September 1, 2017 – August 31, 2024 | Shared |
| September 1 – November 30, 2024 | Shared (support payable to [G.] directly) |
| December 1 – 31, 2024 | Shared |
| January 1 – March 31, 2025 | Shared (support payable to [G.] directly) |
| April 1 – August 31, 2025 | Shared |
| September 1 – November 30, 2025 | Shared (support payable to [G.] directly) |
| December 1 – December 31, 2025 | Shared |
| January 1 – March 31, 2026 | Shared (support payable to [G.] directly) |
| April 1 – July 31, 2026 | Shared |
| August 2, 2026 | [G.] will reach the age of 22 and support will end pursuant to the Kaufman J Final Order |
125Ari argues that:
a. Nothing in the Final Order explicitly requires set-off support while G. is away from home at university.
b. The Final Order does not specify how to calculate child support while a child is away at university.
c. Therefore, the Final Order “does not modify the existing family law principles concerning out of town university support for a child in a shared/split schedule.”
d. Where a child is over 18, section 3(2)(b) of the Child Support Guidelines gives a court the discretion to set child support at an amount the court considers “appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”
e. While at university, G. did not need child support paid to his parents because:
i. G. received scholarships, subsidies and grants covering his entire tuition in the first two years of his degree;
ii. Ari paid 100% of G.’s rent, phone and travel/commuting in the first two years of G.’s degree;
iii. Ruth paid for G.’s groceries and apartment set up, and some of the cost of his schoolbooks; and
iv. G. received benefits through Ruth’s workplace of $2,000 a year.
f. Therefore, there is no child support owing from September 2022, or, in the alternative, set-off support between the parties is owed only during the summer months of 2023 and 2024. The summer schedule is reflected in Ari’s Chart #2.
Analysis
126I have already decided that, because G.’s parenting schedule was shared as of January 1, 2017, Ari’s table child support transitioned to set-off support as of that date.
127I accept each party’s arguments in part:
a. Ruth is correct that the Final Order contemplates that child support will continue while a child is in university. Paragraph 65 states that a child studying at university away from home is not a material change. I agree with Ruth that this indicates that the parties intended that child support would continue to flow between the parties, for G., until he turned 20. Therefore, set-off child support is owing from January 1, 2017.
b. However, once G. turned 20 on August 2, 2024, paragraph 61 of the Final Order means that no child support is payable directly to the parties except for periods that G. lived with the respondent. Despite that wording, both parties agree that paragraph 61 is not limited to G. living with Ruth, but includes situations where G. lives with Ari too.
c. Ruth does not have standing to claim any remedy for the child support she says is “payable to G. directly”. Those amounts would be for G. to claim. Furthermore, it is impossible to determine what support was owing to G. after he turned 20. Such an analysis would require information from G. about his “condition, means, needs and other circumstances.” Therefore, I make no determination about support owed to G. directly; and that support does not figure into what the parties owe to each other. My finding on this issue is without prejudice to G. making his own claim for that support.
d. Therefore, child support between the parties is owing only for those periods that G. lived with either or both of them. The parties agree that G.’s residence was shared when he was home from McMaster. With regard to the duration of that residence, I find Ari’s proposed summer schedule of four months more reliable than Ruth’s argument that G. lived with the parties for six months per year while also attending McMaster. I find it improbable that G. would live at home during what are ordinarily the final months of term (December and April). Therefore, child support for G. while he is 20 and 21 is owed on a set-off basis for four months.
e. I decline to order a specific amount payable as of January 1, 2026. First, I have determined that, because G. is older than 20, child support is not payable between the parties while G. is at university. Second, it is not clear where G. will live after he graduates in the Spring of 2026. If he lives primarily with one party, the other will owe table child support. If he lives with both, a set-off will be required. To promote finality, the parties shall determine the amount that is owing, if any, within 30 days of G.’s 22nd birthday.
128To summarize:
a. Set-off child support for G. begins on January 1, 2017 and is payable throughout any given year until G.’s 20th birthday.
b. For 2024 and 2025, after G. turned 20 and began studying at McMaster, set-off child support is owed only on a summer schedule, that is, from May 1 to August 31. Child support owing for 2025 shall be calculated within 30 days of G.’s 22nd birthday.
c. No specific amount of child support as of January 1, 2026, is ordered at this time. The parties shall follow the approach laid out just above to determine what support is owing for 2026. They shall confirm that amount within 30 days of G.’s 22nd birthday.
d. For the purpose of support owing for G., I accept the calculations in Ari’s Chart #2 which have been adjusted to include set-off support until G’s 20th birthday and summer set-off support after that date until G. turns 22.
Issue Five: What if anything does Ari owe for section 7 Expenses?
Introduction
129I turn next to what section 7 expenses are owed.
130The questions in dispute are:
a. What section 7 expenses and other expenses “agreed to by the parties” were owing, and which ones were paid?
b. What is the proportionate sharing between the parties?
c. How should the issue of tax receipt credits for Jewish Day School costs be addressed?
131Ruth seeks reimbursement for the following expenses:
| Year | Total Expenses: | S. 7 Expense | Clarica | Other |
|---|---|---|---|---|
| 2016 | $6,804.02 | $4,863.67 | $528.85 | $1,411.50 |
| 2017 | $11,690.78 | $9,798.62 | $906.60 | $985.56 |
| 2018 | $5,291.17 | $4,312.57 | $906.60 | $72.00 |
| 2019 | $2,312.60 | $1,406 | $906.60 | $0 |
| 2020 | $906.60 | $0 | $906.60 | $0 |
| 2021 | $906.60 | $0 | $906.60 | $0 |
| 2022 | $151.10 | $0 | $151.10 | $0 |
| Total: | $28,062.87 | $20,380.86 | $5,212.95 | $2,469.06 |
132The actual amount that Ruth claims depends on Ari’s income. For clarity, “Clarica” refers to a joint insurance policy.
133Ruth also seeks reimbursement for the children’s university tuition. She says that Ari owes her $31,536.00 for Z., she owes Ari $523.32 for I., and that G.’s tuition expenses should be determined once he graduates.
134The relevant paragraphs of the Final Order are:
a. Paragraphs 44-50: The parties will share in special and extraordinary expenses proportionate to income, to be adjusted annually. Section 7 expenses were defined as: Jewish day school tuition, summer camp fees where the parties agree to the children’s attendance, extracurricular activities and so-called “special trips”, uninsured medical and dental costs, fees for documents such as passports or driver’s licences, other expenses “which are considered section 7 expenses under the Child Support Guidelines”, and any other “mutually agreed to expenses”. Jewish day school tuition was to be paid by each party to the institution directly and shared proportionate to income.
b. Paragraph 46: Section 7 expenses are to be reimbursed within 14 days of the paying party providing proof of expenditure. The parties will inform each other about these expenses in a timely manner. For the purpose of annual accounting, only section 7 expenses claimed in the year that the expense was paid would be considered as part of the accounting for the prior year. An expense “is still due and owing with the correct percentage applied to the expense” but only in the year in which the request was received.”
c. Paragraph 47: Private school tuition will be paid by each party to the institution directly, wherever practicable. The applicant and the respondent will jointly advise the school of that year’s proportionate sharing. In addition, for the purpose of calculating the respective obligations to pay the private school tuition, the percentage of the proportionate sharing shall be calculated in the year in which the tuition invoice is received. As such, in April when adjusting the proportionate sharing of expenses, it will be deemed that each party has paid the tuition in full on the date when the first payment became due. Tax credit adjustments for private school tuition will be estimated based on this premise as well. Nothing in this paragraph shall impact how the individual school provides a tuition receipt, for what amounts and to whom, based on the school’s ordinary practices for issuing receipts in respect of tuition amounts paid. In the event that the school does not issue individual receipts in the proportionate amount paid by each party, then the parties will reconcile the discrepancy between themselves to reflect the terms of this order in filing their respective income tax returns.
d. Paragraphs 53-54: In the event that a child attends a Canadian university or college program, for so long as child support is payable under the Order, the parties “shall assist the children, if so inclined, in either of their sole discretion or determination”. If a child attends a university or college outside Canada, the parties will “deem at each of their sole discretion” the first $20,000 of these tuition fees as section 7 expenses and any additional tuition will be the children’s responsibility.
Party Positions
135Ari argues that:
a. All the extracurricular expenses, school trips and uninsured medical/dental payments as enumerated in para. 44 of the Final Order for which Ruth has provided any proof of payment are included in his Chart #3 (Section 7 Expenses) and then added back to his Charts outlining what he has paid in support. Specifically, Ari included all those expenses provided in Ruth’s Exhibit E to her 2019 disclosure affidavit. Where Ari did not include amounts in his Chart #3, this means that there was either no proof of payment provided, or the item was not mutually agreed to.
b. The Jewish Day School costs (Netivot and Or Chaim) have been reallocated in accordance with section 7 of the Guidelines and the proportionate sharing set out in the 2015 Order, paras. 45 and 79. The proportionate sharing ratio is calculated inclusive of spousal support received and paid as required by s. 3.1 of Sch. III of the Child Support Guidelines.
c. Tax receipt credits for the Jewish schools have not been reallocated as the net effect of this would be nominal and the calculation provided by Ruth is based on different proportionate sharing (i.e., Ruth ignores the spousal support she should have included in her income). As a result, a recalculation by the Court at this time is too complex and unwieldly.
d. All post-secondary expenses are in a party’s “sole discretion … if so inclined” pursuant to paragraph 53 of the Final Order. Therefore, such expenses should not figure in any calculations.
e. Ari has removed from his chart the $10,000 he contributed for Z.’s year in Israel. He no longer seeks credit for it.
136Ruth argues:
a. The issues in dispute are are not section 7 expenses under the Guidelines but, rather, additional expenses that the parties agreed to, in writing through text messages. Those expenses include school photos for the children, school lunches, additional clothing items for the children, religious items purchased etc. Many of these expenses were historically reimbursed, as outlined in the statement of agreed facts.
b. Ruth is owed payment for those items, as either section 7 expenses that were agreed to by the parties, or under a contractual obligation, in writing. Ari requested that Ruth incur certain expenses up front on his behalf, on a promise to reimburse these expenses in the future. She did so, but he did not.
c. Ruth provided Ari with proof of the expenses before this litigation commenced and throughout it via disclosure. Ruth cites a Tracking Sheet she prepared for this purpose, which was not admitted into evidence. To date, Ari owes approximately $10,000 for G. which will continue through G.’s fourth and final year at McMaster in 2026.
d. The parties ought to share proportionately in the cost of Z.’s Yeshiva year in Israel. When a child studies outside Canada, the Final Order caps programs costs at $20,000. Ari contributed $10,000 to Z.’s program, but he owes more to satisfy his proportionate share.
e. In the interests of fairness to their children, and having regard to the wording of the Final Order which expresses the parties’ “intention” to pay for university, the parties ought to contribute to the children’s university tuition as a section 7 expense.
Analysis
What section 7 expenses and other expenses “agreed to by the parties” were owing, and which ones were paid?
137There are two issues in determining section 7 expenses. The first issue is what counts as a section 7 expense under the Final Order. The second issue is whether Ruth has submitted sufficient proof of payment for those expenses.
What counts as a section 7 expense?
138Paragraph 44 of the Final Order enumerates several discrete categories of expenses: expenses listed in paras. 44(a)-(e), “other expenses not explicitly listed which are considered section 7 expenses under the Guidelines” (para. 44(f)), and “any other mutually agreed-to expenses” (para. 44(g)).
139In addition, the Final Order states that:
a. Several expenses are to be paid directly to third party service providers “where practicable”. This includes the children’s Jewish Day School tuition.
b. The parties “shall continue to maintain their joint policy of insurance with Clarica until it terminates and share the payment of premiums equally.”
c. The parties shall assist the children with university tuition “if so inclined, in either of their sole discretion.”
140Having regard to the evidence, including the parties’ testimony and the wording of the Final Order, I make the following findings.
141Z.’s Year in Israel: I have already decided that, after Z. turned 18 and while he was at Yeshiva in Israel he was not entitled to support under paragraph 60 of the Final Order or the Child Support Guidelines. I make the following additional findings:
a. The Yeshiva tuition is not an eligible expense under paragraph 44 of the Final Order because:
i. It does not fall under the enumerated expenses in paragraphs 44 (a)-(e) because under those provisions “tuition for school” is for elementary, middle, and high school. Nothing in paragraph 44 includes tuition for a child who has graduated from high school.
ii. Given that I have already determined that Z. was not entitled to child support for the time he was in Israel after he turned 18, his Yeshiva tuition is not a section 7 expense under paragraph 44(f).
iii. Having considered the evidence, I am not persuaded that Ari agreed to pay the tuition under paragraph 44(g) of the Final Order. I accept Ari’s testimony that he was always opposed to the idea of Z. attending Yeshiva, in part, because of its cost (approximately $25,000 USD). Ari did eventually give Ruth $10,000 which he marked as “do with as you see fit”. I am not persuaded that this constitutes a “mutual agreement” to pay for Yeshiva. Ari has removed the $10,000 he gave Ruth from his calculations so that it is no longer a credit to him.
iv. Given that Z. was not entitled to child support, there can be no other section 7 expenses payable on account of him from November 2017 to June 2018. This includes such things as a trip he made to Poland. On this point, I accept Ari’s Chart #2.
142Jewish Day School Tuition Tax Credits: Ruth argues there must be an accounting for the tax credits each party received on account of their contributions to the children’s Jewish Day School tuition; and the parties should not receive credit for the tuition as a section 7 expense unless those credits are accounted for. The difficulty is that the tax credits depended on the individual school’s fundraising and thus were not predictable from year to year. In addition, for some of those years Ruth had children from her current marriage enrolled in the schools, which required additional calculations. Ruth submitted a “Religious School Spreadsheet” with those calculations.
143Ari argues that: the net effect of reallocating the tax credits is nominal, Ruth’s calculations are based on inaccurate proportionate sharing, and a recalculation by the Court at this time is too complex and unwieldly.
144While I believe Ruth has done these calculations in good faith, they do appear to lead to nominal results. Ruth’s closing submissions do not cite an actual number for the amount owing – instead the court is directed to a spreadsheet. In that document, Ruth appears to conclude that she owes Ari a tuition adjustment of $3,324.90 and that he owes her a tax credit adjustment of $4,362.50. Given my finding that Ari has overpaid Ruth by over $27,000, that adjustment does not affect the outcome of this trial. It would have required additional trial time – that was not available – to fully understand Ruth’s charts on the tax credits. It might even have required expert evidence. In the circumstances, I am not persuaded that Ruth has met her burden to show the amount of tuition tax credits that should be included in the section 7 expenses either party owes to the other.
145Children’s university tuition: I find that the Final Order says the parties have discretion over whether to contribute to university tuition. Understandably, Ruth thinks that it is unjust for the parties to contribute to their children’s university educations unequally This is one of the areas where a general sense of fairness must bend to the parties’ deal. Paragraph 53 states that the parties “shall assist the children, if so inclined, in either of their sole discretion or determination”. The paragraph continues that “it is the intention of the parties to endeavour to try and pay for reasonable [tuition].” While the blend of mandatory with discretionary language is sub-optimal, the use of the term “in either of their sole discretion” supports Ari’s argument that tuition was never an obligation. Ari testified, and Ruth acknowledged, that that term was included at Ari’s request. Therefore, I find that no university tuition may be included in the determination of section 7 expenses owing between the parties. For this purpose, I accept Ari’s Chart #2 which has removed them entirely.
Has Ruth provided sufficient proof of the expenses she claims?
146Throughout the trial it was challenging to determine what expenses Ruth is claiming versus what Ari has paid.
147Ruth has grouped her expenses between 2016 and 2019 into three categories: section 7 expenses, Clarica insurance premiums, and “other expenses” that were mutually agreed to under paragraph 44(g) of the Final Order. After 2019, Ruth’s claims are limited to Clarica premiums. For clarity, Ari has included the cost of those premiums in all of his charts.
148Ari says that his Chart #3, which deals with section 7 expenses, has accounted for any expenses listed in paragraph 44 of the Order for which Ruth has provided any proof of payment. Specifically, all the expenses provided in Ruth’s Exhibit “E” to her 2019 disclosure affidavit are included. Where amounts are not included, this means that either there was no proof of payment provided or the expense was not agreed to.
149Having considered all the evidence, I find:
a. The Final Order contemplates that each party will keep the other apprised of section 7 expenses on a regular basis.
b. With the exception of two small receipts provided in 2016 or 2017, Ruth did not provide any proof of payment for any expenses from that time until August 2019 when she provided her disclosure at Exhibit “E”. I am satisfied that Ruth stopped sending section 7 expenses to Ari because the parties’ communication had broken down.
c. Ruth relies on myriad texts to show that the parties reached a “mutual agreement” on various items, some of them quite small. It was not possible to go through all of these texts in the time allotted to the trial.
d. I disallowed a significant proportion of Ruth’s other claimed expenses, including Z.’s Yeshiva tuition and the children’s university expenses.
e. In the circumstances, I find Ari’s treatment of the outstanding expenses more persuasive than Ruth’s. I believe that Ruth has done her best to prove the expenses. But I find it more likely than not that the outstanding expenses will not change the fact that Ari has overpaid Ruth.
f. I accept that Ari’s Chart #3 appropriately reflects section 7 expenses. To integrate those expenses into the overall calculations, I rely on Ari’s Chart #2 which was adjusted after trial in accordance with my invitation to the parties to point out mathematical errors.
What is the proportionate sharing between the parties?
150Ari argues that Ruth did not include her spousal support in her income for the years when she received it. Ruth did not dispute this. Therefore, the proportionate sharing is as follows (Ari is noted first):
a. 2016: 52/48
b. 2017: 71/29
c. 2018: 69/31
d. 2019: 59/41
e. 2020: 69/31
f. 2021: 76/24
151I rely on Ari’s Chart #2 which incorporates the above percentages.
Issue Six: What if anything does Ari owe for spousal support arrears?
152Ari’s spousal support obligation ended in 2015. However, for 2016 he agreed that he owed $159,616.00 in spousal support arrears. In addition, under paragraph 8.9 of the Minutes of Settlement (incorporated by reference into the Final Order), Ari would only receive credit for spousal support arrears after he had paid table child support, child support arrears, section 7 expenses and ongoing spousal support.
153The allocation of expenses, combined with Ruth’s higher account of Ari’s income, child support and section 7 expenses, and the higher interest rate applied to Ari (discussed below) helps explain why Ruth says Ari owes her over $450,000 while Ari says he has overpaid. Ruth calculates the interest owing on those spousal support arrears over longer periods.
154Given that I have found that (a) Ari’s income is significantly lower than Ruth’s calculations would show, (b) Ruth owes more child support than she argued, and (c) Ari’s section 7 expenses over the years are significantly less than what Ruth claimed, I accept Ari’s calculations in his Chart #2 which show that his spousal support arrears were fully paid sometime in 2020.
Issue Seven: What if any interest does Ari owe?
155Ari accepts that under the Final Order, he is liable to pay interest at prime plus two percent, compounded every two weeks. This was a specific concession to Ruth, who explained that the arrears made her feel like Ari’s ‘banker’.
156Ari concedes that this elevated rate of interest applies only to him. Arrears debited to Ruth are paid at a rate of 2% interest.
157While there was some argument at trial over when interest would be due, given that my findings about child support, section 7 expenses, and university tuition greatly reduce Ari’s arrears from what Ruth claims, I accept Ari’s calculation of the interest he owes as shown in his Chart #2. For clarity, Ari’s higher rate of interest does not affect the final calculation which shows that he has overpaid Ruth.
Issue Eight: Is Ari entitled to credit for lost spousal support deductions and, if so, how much?
158Under the Final Order, Ari was to receive credit on his income tax returns for spousal support payments. However, in any given year, spousal support payments would only be credited to Ari after he had satisfied other payments in the following order: child support, arrears and section 7 expenses.
159The issue about tax deductions arises because of the parties’ starkly divergent conclusions about: Ari’s income, the children’s residential schedule, what child support was owing to which party, and section 7 expenses. All of this affects the amount of Ari’s arrears which, in turn, affects the amount of his payments that should have been allocated to spousal support on Ari’s income tax returns.
160This court can adjust amounts owing between parties to account for lost spousal support deductions: Gonsalves v. Scrymgeour, 2017 ONSC 1034, 92 R.F.L. (7th) 398, at paras. 201-203, citing Hume v. Tomlinson, 2015 ONSC 84, 59 R.F.L. (7th) 169; Charron v. Carrière, 2016 ONSC 7523, 86 R.F.L. (7th) 108. Alternatively, the court can order the parties to refile their taxes requesting a special tax calculation: Negin v. Fryers, 2018 ONSC 4486, 142 O.R. (3d) 609.
161Ruth argues that, since Ari can resubmit his tax returns for the relevant years now, it is unnecessary to adjust the amount owing by either party.
162Considering the broader context of this case, I find that it would be unjust to require the parties to refile tax returns and request a special calculation. First of all, the amounts are significant (over $39,000 in total for the years 2016-2020) and materially affect the outcome of this trial. Both parties have asked the court for finality. I find that leaving out such a large component of the calculations would undermine that desire. Second, there is no evidence that Ari failed to pay spousal support such that a credit would be unjust: Meth v. Barrenechea, 2016 ONSC 1415, at para. 16. Third, I agree with Ari that there is too much “bad blood” between the parties to require them to cooperate on their tax returns. Fourth, Ruth has relied on other aspects of the Final Order and throughout these reasons I have credited several of her arguments. The parties must be held to their deal, which anticipated that Ari would be able to claim spousal support in the years that he paid it.
163Ari’s Chart #2 credits him with notional losses for spousal support deductibility equal to the spousal support that he paid each year in 2016-2019. He subtracts from this amount the actual spousal support deduction accepted by the CRA for any given year. The “loss” is then netted down by 50% to account for Ari’s 50% income tax bracket and deducted from any remaining Spousal Arrears.
164There is no exact science to this sort of calculation: Charron, at para. 33 citing Bastarache v. Bastarache, 2012 NBQB 75, 387 N.B.R. (2d) 152, at para. 45. I find Ari’s formula appropriate. It uses the same rate – 50% – that I applied to gross-up Ari’s travel expenses and is in the middle of the marginal tax rates cited by Ruth’s counsel.
165For clarity, the following amounts apply:
| Year | Ari’s Spousal Support Deductions |
|---|---|
| 2016 | ($13,249.00) |
| 2017 | ($21,342.00) |
| 2018 | $4,476.00 |
| 2019 | ($18,354.00) |
| 2020 | ($9,076.00) |
| TOTAL | ($39,209) |
166In the circumstances, mindful of my duty under Rule 2 of the Family Law Rules to deal with cases justly, I am persuaded that Ari’s method both respects the intent of the Final Order, and fairly accounts for his spousal support deductions. My conclusion is buttressed by Ari’s disavowal of any claim to be reimbursed by Ruth for overpayments to her.
CONCLUSION
167Relying on Ari’s Chart #2, adjusted for the gross-up to Ari’s travel expenses as explained earlier in these reasons, I find as follows:
a. Ari made the following payments to Ruth:
i. 2016: $113,308
ii. 2017: $110,000
iii. 2018: $72,000
iv. 2019: $72,000
v. 2020: $39,000
vi. 2021: $36,000
vii. 2022: $9,000
b. Ari overpaid support as follows (in relevant years, this figure includes the child support that Ruth should have been paying to Ari):
i. 2016: $33,340
ii. 2017: $47,855
iii. 2018: ($8,619)
iv. 2019: $39,405
v. 2020: $11,340
vi. 2021: $5,724
vii. 2022: $11,352
viii. 2023: ($16,116)
ix. 2024: ($11,166)
c. As explained above, Ari lost a total of $39,209 in spousal support deductions.
d. Taking into account Ari’s overpayments and lost spousal support deductions, but excluding adjustments for the Clarica insurance premiums, Ruth owed Ari the following amounts from year to year:
i. 2020: $3,521
ii. 2021: $9,750
iii. 2022: $21,603
iv. 2023: $5,759
v. 2024: ($5,491)
168The adjustment for the Clarica premiums Ari did not pay ($37.78/month times 80 months between 2016-2022 + interest (Prime plus 2% compounded semi-monthly) means that Ruth is owed $3,605.00.
169Therefore, in view of all of the evidence and my findings on all the issues, I am satisfied on a balance of probabilities that Ari owes Ruth $9,096.00.
170[Appendix redacted]. If either party finds an error in my mathematical calculations, they shall inform my assistant within 10 days of this decision. Subsequent to my order, both parties made submissions which resulted in an updated Chart #2. The financial accounting in this case was complicated. Ruth correctly pointed out that Ari’s original Chart #2 did not include set-off child support between G’s 18th and 20th birthdays. This oversight has been corrected. While Ruth makes several additional suggestions which go beyond mathematical adjustments, at Ruth’s request, I have clarified that the parties are to reconcile child support owing in both 2025 and 2026 within 30 days of G.’s 22’s birthday. At Ari’s request, I am staying FRO enforcement until a costs decision is rendered.
ORDER
171In conclusion, I make the following order:
a. The Respondent’s claim is granted in part.
b. The Applicant owes the Respondent $9,096. To account for all the amounts that might be owing between the parties, until a costs decision is rendered in this case there shall be no enforcement by FRO.
c. Due to lack of standing this order does not address whether either party has satisfied their obligation, under the Final Order, to pay child support directly to any child of the marriage. This decision is without prejudice to any child bringing their own claim.
d. Within 30 days of August 2, 2026, the parties shall determine what, if any, child support is owing from either party to the other for their youngest child, G., for the years 2025 and 2026.
e. Within 10 days, the parties may advise my assistant of any mathematical errors in my calculations. For clarity this opportunity is limited to mathematical errors – not substantive disagreement. As of the date of this corrected Order, this provision is spent.
f. The parties shall try to come to an agreement about costs. If they do not, within 45 days of this corrected Order, the Applicant may serve and file an argument of no more than 7 pages, exclusive of offers to settle and a bill. The Respondent will have 14 days from receipt of the Applicant’s materials to serve and file materials on the same terms. There shall be no right of reply. Parties shall submit their materials via C-Track together with an email to me care of Stella.Okemuo@ontario.ca.
Mathen J.
Released: February 11, 2026
Footnotes
- In writing these reasons, I noticed that the total allocation of the child support and spousal support is $213,775. That is $66 more than the total amount of arrears cited ($213,709). Because the difference is small and neither party appeared to catch it, I will not address it further.
- Paragraph 78 abbreviates Koskie Minsky as “KM”.
- The order says “KM”.